Digest: (1) With respect to attorneys who are personally involved in a judge’s
first-degree relative’s representation in either a direct or supervisory
capacity:

(a) During the representation, the judge is disqualified, subject to
remittal, when those attorneys appear before him/her. Remittal is
unavailable if any party is appearing without counsel, if the judge is
unwilling or unable to make full disclosure, or if the judge is uncertain
he/she can be fair and impartial.

(b) For two years after the representation ends, the judge may not
preside in matters involving those attorneys unless all parties are
represented by counsel and the judge makes full disclosure on the
record. After disclosure, the judge may preside, even if a party
objects, provided he/she can be fair and impartial.

(c) After the two-year post-representation period, the judge has no
further obligation and may preside in all matters involving those
attorneys, provided he/she can be fair and impartial.

2) With respect to other attorneys in the same law firm who have no
involvement whatsoever in the judge’s first-degree relative’s
representation, the judge may preside as long as he/she can be fair and
impartial, and has no obligation to disclose or disqualify him/herself.

A judge asks about his/her obligations when the law firm defending his/her
first-degree relative in a civil lawsuit appears before him/her. The judge notes that
the law firm was retained by the insurance company of the judge’s second-degree
relative.1 The judge asks how long the obligation lasts and whether it extends to all
attorneys at the law firm, even if they are not personally involved in representing the
judge’s relative.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR
100.2) and act to promote public confidence in the judiciary’s integrity and
impartiality (see 22 NYCRR 100.2[A]). A judge must also disqualify him/herself in a
proceeding in which the judge's impartiality might reasonably be questioned (see 22
NYCRR 100.3[E][1]).

The only novel question here is whether different principles might apply
because the lawyers defending the judge’s first-degree relative are retained and paid
for by an insurance company. We believe the identity of the payor should not change
the analysis (see e.g. Opinions 15-95; 09-141; cf. Rules of Professional Conduct [22
NYCRR 1200.0] rule 1.8[f][2] [lawyer must not accept payment for client’s legal fees
from a third party unless, inter alia, “there is no interference with the lawyer’s
independent professional judgment or with the client-lawyer relationship”]).

We therefore briefly reiterate the applicable principles from prior opinions.

In Opinion 15-88, a judge asked about his/her obligations in unrelated matters
involving an attorney who was then representing the judge’s first-degree relative in a
contested matrimonial action. We advised:

a judge must disqualify him/herself in a proceeding where an attorney
who appears before the judge is currently representing the judge’s child
in another matter. Disqualification while the attorney is representing
the judge’s child is subject to remittal, unless one of the parties is self-represented. In the latter case, the judge may not preside.

For a period of two years after the representation ends, in any case
where the attorney appears and all parties are represented, the judge
must disclose that the representation occurred. After such disclosure, if
a party objects to the judge’s continued participation in the matter, the
judge must exercise discretion and determine whether recusal is
warranted. However, if a party appears without representation during
this two year period the judge must disqualify him/herself. Once the
two year post-representation period ends, the obligation to disclose
ceases.

As we advised in Opinion 13-132, the obligation does not extend to the entire
law firm, but only to attorneys who have some personal involvement in representing
the judge’s first- or second-degree relative:

the judge need not disqualify him/herself, or make any disclosure, for
other attorneys in the law firm who are not personally involved in
representing the judge’s relative in a direct or supervisory capacity –
either during or after the representation.

As always, remittal is not available if any party is appearing without counsel or
if the judge is unwilling or unable to make full disclosure of the basis for
disqualification on the record (see id.). However, assuming all parties are
represented by counsel and the judge wishes to offer an opportunity for remittal, the
usual three-step process applies. First, the judge must fully disclose the basis for
disqualification on the record. Second, without the judge’s participation, the parties
who have appeared and not defaulted and their lawyers must all agree that the judge
should not be disqualified. Third, the judge must independently conclude that
he/she can be impartial and be willing to participate in the case. If all three steps
are satisfied, the judge may accept remittal of disqualification and must incorporate
the parties’ and their attorneys’ agreement into the record of the proceeding (see
id.; 22 NYCRR 100.3[F]).

Finally, if it proves “difficult for the judge to know which [attorneys] have worked on
the judge’s [relative’s] case, and to what extent, as assignments within a law office
may change, and attorneys who are not formally assigned to a matter may informally
consult with other colleagues from time to time” (Opinion 11-139), the judge may
wish to consider the practical alternative approaches outlined at the end of Opinion
13-132 and Opinion 14-51 to address this issue.

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1 First-degree relatives include the children and parents of the judge and his/her
spouse; second-degree relatives include grandparents, grandchildren, and siblings.
When analyzing disqualification requirements, we do not distinguish between
relatives by blood or by marriage.